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People v. Carthen

California Court of Appeals, Third District, Sacramento
Apr 30, 2009
No. C056055 (Cal. Ct. App. Apr. 30, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RODNEY RICHARD CARTHEN, Defendant and Appellant. C056055 California Court of Appeal, Third District, Sacramento April 30, 2009

NOT TO BE PUBLISHED

Super. Ct. Nos. 04F11152, 05F07278 & 06F00522

BLEASE , Acting P. J.

In Sacramento County Superior Court consolidated case Nos. 04F11152 and 05F07278, a jury convicted defendant Rodney Richard Carthen of two counts of possession of cocaine. The court found that he had served a prior prison term for robbery, which also constituted a strike, and that he had committed one of the above drug possession charges while on bail. In case No. 06F00522, defendant pled no contest to failure to register as a sex offender.

Sentenced to state prison for nine years eight months, defendant appeals contending that reversal of his drug convictions are warranted because: (1) the trial court failed to rule on his Faretta motion, thereby depriving him of his constitutional right to represent himself, and (2) his attorney’s failure to withdraw from the case due to a conflict of interest adversely effected the attorney’s representation. Disagreeing with both claims, we shall affirm the judgment.

While defendant has appealed all three cases, the only issues he raises relates to the drug cases.

Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].

DISCUSSION

I

Defendant contends that he was denied his right to represent himself at trial when the court failed to rule upon his unequivocal request for such representation. We reject the contention.

The rules regarding a defendant’s right to self-representation are well settled. Pursuant to Faretta, a trial court must grant a defendant’s request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers. (People v. Valdez (2004) 32 Cal.4th 73, 97-98.) In assessing whether a defendant’s self-representation request is unequivocal, a court “‘should evaluate not only whether the defendant has stated the motion clearly, but also the defendant’s conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant’s motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.’ [Citation.] Moreover, the Faretta right is forfeited unless the defendant ‘“articulately and unmistakably”’ demands to proceed in propria persona. [Citations.]” (Id. at pp. 98-99.)

The circumstances surrounding defendant’s contention are as follows. On August 24, 2006, defendant, accompanied by his counsel Rodrigo Mayorga, appeared before Judge Hake for the purpose of addressing several in limine motions. At the conclusion of the hearing, Mayorga told the court, “[M]y client has just informed me that he wants to do a Marsden motion.” The court expressed its concern that the suddenness of the motion indicated that it was being made because defendant was frustrated due to having just lost several of the in limine motions. The court put the matter over to August 28, 2006, and denied defendant’s request to use the law library.

People v. Marsden (1970) 2 Cal.3d 118.

On August 28, 2006, the matter resumed, defendant confirmed his desire to proceed with the Marsden motion and the courtroom was cleared. Defendant reaffirmed that he was dissatisfied with his counsel and that he was requesting that another attorney be appointed to represent him. The court explained to defendant, “Okay, Now, you -- I say appointed, that means appointed. That does not mean -- you always have the right to retain an attorney. If you have an attorney you retained and he appeared, she appeared, then of course, the Court would be able to accept that. But as you sit there right now, you have not retained an attorney nor has one been retained on your behalf. So you’re asking the Court to relieve Mr. Mayorga and appoint another attorney; is that right?” Defendant replied, “Pro per, sir.”

The court asked, “You’re asking to go pro per? Do you feel Mr. Mayorga has not properly represented you” and defendant replied, “Yes, sir.” The court responded, “Tell me why you feel that way. And be specific.” There followed 28 pages of reporter’s transcript wherein defendant specifically described why he believed counsel had not properly represented him. Aside from defendant’s single reference to “pro per,” the matter of defendant wanting to represent himself was never mentioned again.

The court denied the motion, the parties returned to open court, and counsel requested a nine-day continuance of the trial. The court asked defendant if the continuance was agreeable with him and defendant responded that it was.

Defendant argues that his request to go “pro per” was an unequivocal request to represent himself and that the court’s failure to rule on the motion requires reversal. We disagree.

Defendant’s use of the words “pro per” were given by him at the commencement of the Marsden hearing, which he had previously requested and confirmed that he still wanted, and were made in response to the court’s query whether he wanted his counsel relieved and another attorney appointed. In these circumstances, defendant’s answer of “pro per” suggests that he may have understood those words to constitute a request to have counsel relieved, rather than a request to represent himself. That this is likely the case is bolstered by defendant’s never broaching the subject of self-representation again during the Marsden hearing or any other time during the trial. Indeed, immediately after his Marsden motion was denied, defendant unequivocally agreed to a short continuance of the trial knowing that he was still represented by counsel. Consequently, defendant’s brief mention of the words “pro per” do not comply with the requirements that a defendant’s request for self-representation be an “unequivocal” and “unmistakable” demand to represent himself.

II

Defendant contends the trial court erred in denying his motion for a new trial, which was grounded on his claim that his counsel’s failure to move to withdraw from the case because of a conflict of interest adversely effected counsel’s representation. We reject the claim.

“A criminal defendant’s right to effective assistance of counsel, guaranteed by both the state and federal Constitutions, includes the right to representation free from conflicts of interest. [Citations.] To establish a violation of the right to unconflicted counsel under the federal Constitution, ‘a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.’ [Citation.] To establish a violation of the same right under our state Constitution, a defendant need only show that the record supports an ‘informed speculation’ that counsel’s representation of the defendant was adversely affected by the claimed conflict of interest.” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1009.)

However, after Kirkpatrick the “analysis of Sixth Amendment conflict of interest claims [by the United States Supreme Court; Mickens v. Taylor (2002) 535 U.S. 162 [152 L.Ed.2d 291]] evolved into one of ineffective assistance of counsel, which requires a defendant to show counsel’s deficient performance and a reasonable probability that but for counsel’s deficiencies, the result of the proceeding would have been different.” (People v. Doolin (2009) 45 Cal.4th 390, 421.) California has adopted the federal standard while observing that “[u]pon close examination of the federal standard and our own, we discern no ultimate substantive difference between the two.” (Ibid.) We will apply the federal standard.

Whether counsel’s performance was adversely affected “requires an inquiry into whether the record shows that counsel ‘pulled his punches,’ i.e., failed to represent defendant as vigorously as he might have had there been no conflict.” (People v. Easley (1988) 46 Cal.3d 712, 725, overruled on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421; see also Burger v. Kemp (1987) 483 U.S. 776, 787-788 [97 L.Ed.2d 638, 652-653] [even assuming an actual conflict, reversal not required because the record did not support claim that defense counsel’s advocacy was thereby harmed].)

The claimed conflict arises as follows: On December 16, 2004, officers had gone to the residence of Shaquea DeWitt in response to her call that defendant had assaulted her. DeWitt pointed out defendant as he drove by and the officers stopped, arrested and searched him, finding a bag of cocaine in his front pants pocket. At the preliminary hearing, the officer initially testified he found the cocaine in defendant’s coat, but after reviewing his police report the officer corrected his testimony and said it was found in defendant’s pants pocket.

In the early morning hours of August 15, 2005, officers responding to a call regarding a suspicious vehicle found defendant and his brother, Devoughn, asleep in defendant’s car. Devoughn had a bag of marijuana on his lap. Defendant was ordered out of the car and as he was doing so one of the officers saw a bag of cocaine on defendant’s lap.

As to the December 16, 2004 incident, Devoughn testified that defendant was moving his items from DeWitt’s apartment and because it was cold he lent defendant his coat before he gave it to defendant. Devoughn, a user of cocaine, had failed to remove it from the coat. Regarding the August 15, 2004, incident, Devoughn testified he saw the officers approaching the car and fearing he would go to jail threw a bag of cocaine in defendant’s direction, but he did not know where it landed.

When asked, Devoughn denied approaching Mayorga in the courtroom on August 28, 2006, and asking, “What if I say the drugs are mine?” Instead, Devoughn claimed that he said, “Mr. Mayorga, I have something to tell you about the drug case.” Devoughn also denied being in the court hallway and saying that “he didn’t think he could take two of the drug charges.”

Kerry Blackburn, a deputy district attorney who had been handling the case on August 28, 2006, testified in rebuttal that on that date she saw Devoughn approach Mayorga and, after asking to speak with him, said, “What if I say the drugs are mine?” or “What if I said the drugs are mine?” Mayorga replied, “Well, that would be a defense.” Later, while in the court hallway, Blackburn overheard Devoughn talking on the phone to his grandfather and saying, “I don’t know if I want to take them both.”

On cross-examination, Blackburn admitted that during the phone conversation she did not hear Devoughn say words to the effect, “You know, I will lie and say the drugs are mine,” or “Well, you can go ahead and take the rap,” or “You know, I am going to lie and I’m going to say that I’m going to take both those drug cases for my brother.”

Following defendant’s convictions, he filed a motion for a new trial, urging, inter alia, that Mayorga should have withdrawn from the case because of a conflict of interest. The conflict was that Mayorga had become a material witness to impeaching Blackburn’s claim that Devoughn had said “What if I told you the drugs are mine.”

Mayorga filed a declaration regarding his representation of defendant, which stated: “Prior to testifying in this case, DeVoughn was advised of the allegations on the part of Deputy District Attorney Blackburn. He, adamantly denied making the statement (apparently referring to “What if I say the drugs are mine”) attributed to him, and attorney Mayorga, who was present when DeVoughn approached Mayorga about testifying, agreed with him.”

The declaration further explained that Mayorga believed the better approach was to elicit facts from Blackburn on cross-examination which would cast doubt on the accuracy of her claim and that an assertion by him that Blackburn, a deputy district attorney, could not be trusted “would have had the effect of turning the jury completely against the defendant.”

Assuming that Mayorga’s being a potential witness constituted a conflict of interest rather than merely a choice of strategies to be taken on behalf of defendant, defendant cannot show that Mayorga’s choice adversely affected his representation of defendant, i.e., that Mayorga pulled any punches or failed to vigorously conduct the defense.

Devoughn’s alleged statement, “What if I say the drugs are mine” is ambiguous. It could be interpreted as asking for the legal consequences of such an admission, or it could be interpreted as his being willing to falsely take the blame for possession of the drugs. Mayorga thoroughly cross-examined Blackburn regarding whether she heard Devoughn say that he would lie and take the drugs, or take the rap, or that he would lie and take both cases. During closing argument, Mayorga essentially argued that even if the challenged statement had been made by Devoughn, it was more likely that Devoughn meant that he would be willing to take both cases because the drugs were in fact his, and he was doing so because he recognized the unfairness of his brother being convicted of offenses his brother did not commit.

Since the record does not support a showing that Mayorga’s tactical decision to rely on his cross-examination of Blackburn to challenge her testimony rather than his withdrawing from the case and testifying contrary to her version of what was said resulted in his pulling any punches in presenting the defense, the contention is rejected.

The judgment is affirmed.

We concur: NICHOLSON , J., BUTZ , J.


Summaries of

People v. Carthen

California Court of Appeals, Third District, Sacramento
Apr 30, 2009
No. C056055 (Cal. Ct. App. Apr. 30, 2009)
Case details for

People v. Carthen

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RODNEY RICHARD CARTHEN, Defendant…

Court:California Court of Appeals, Third District, Sacramento

Date published: Apr 30, 2009

Citations

No. C056055 (Cal. Ct. App. Apr. 30, 2009)